'Public Prosecutor' is a term in vogue in the criminal justice system of this country and many Commonwealth nations. Prior to the enforcement of the Code of Criminal Procedure, 1973, prosecutors all over India were members of the police force within the meaning of Section 2 of the Police Act, 1861. They were liable as such for departmental action and punishment under Section 7 of the said Act for remission and negligence in the discharge of their duties, and were answerable to higher authorities in the police. As a result, they were aptly called Police Prosecutors.

The transition from Police Prosecutor to Public Prosecutor

In 1958, the Law Commission of India in it’s 14th report recommended that the prosecution agency should be made independent from the police department and should not be amenable to its administrative control. This recommendation was accepted, and Parliament, while enacting the new Code of Criminal Procedure, consciously inserted Section 24 and 25 providing for the appointment of ‘Public’ Prosecutors and Assistant ‘Public’ Prosecutors by the Central and state governments. The use of the word ‘Public’ was a conscious effort on the part of the legislature to signify that henceforth, prosecutors would be deemed independent from police control.

Judicial pronouncements

The issue of independence of prosecutors from the administrative and disciplinary control of police officers first arose before the Allahabad High Court in 1975 in Jaypal Singh Naresh and others v. Uttar Pradesh Government and other, when prosecutors of the Uttar Pradesh government were placed under the administrative and disciplinary control of the police department by the State government. The Allahabad High Court held:

“...if administrative and disciplinary control over the public prosecutors was entrusted to the officers of the Police Department, the very purpose for which Section 25 was enacted would be frustrated...The State government appoints Assistant Public Prosecutors and it can alone dismiss or remove them but that does not mean that the police officers to whom immediate disciplinary control has been entrusted will cease to have any right to exercise powers over the Assistant Public Prosecutors...Once they are liable to answer to the Superintendent of police and Inspector General of Police, in substance they are subordinate officers to them and they would be liable to carry out their orders and directions. The State Government while exercising its power of dismissal or removal is bound to be affected by the reports and opinion of those Police officers who have administrative and disciplinary control over the public prosecutors, therefore the contention that since the ultimate control vests with the State Government the immediate control of Police officers would not affect the independence of the prosecuting agency is fallacious.”

Again in 1989, the Punjab and Haryana High Court dealt with the very same issue in Krishn Singh Kundu v. State of Haryana, and held:

“That the action of the respondent State of Haryana, in appointing a police officer as Director of Prosecution, that is, in charge of the Prosecution Agency of the State, is wholly illegal and violative of the very letter and spirit of Sections 24 and 25 of the Code of Criminal Procedure. We, therefore, by issuing a writ of certiorari, quash the appointment of the Director of Prosecution, Haryana, who happens to be an officer of the Police Department, and by issuing further a writ of Prohibition, we forthwith restrain the State of Haryana from permitting any police officer to occupy the office of the Director of Prosecution.”

Ultimately, the Supreme Court in SB Sahane v. State of Maharashtra conclusively settled this issue by holding that the administrative and disciplinary control of police over the prosecutors is against the letter and spirit of Section 25 of the CrPC, and hence prosecutors should be fully free from the administrative and disciplinary control of the police department and its officers.

The Rajasthan High Court followed this judgment in Sohan Singh and others v. Union of India & Ors and held:

“Hence, respondents are directed to constitute a separate Cadre of Public Prosecutor and Assistant Public Prosecutors and making the Head of the Prosecution Department free Administrative and Disciplinary Control of the Railway Police Force and its officers. It is further directed that no person belonging to the Armed Wing of the RPF shall be appointed as the Head of the Department of the Prosecution Agency.”

Prosecutors in the CBI - A systemic unconstitutionality

In the Central Bureau Investigation (CBI), there is a continuous violation of the letter and spirit of Section 25 CrPC as the prosecutors of CBI work under the administrative and disciplinary control of the police officer of the CBI. In every branch of CBI, the Superintendent of Police is working as the head of the branch and exercises administrative and disciplinary control over the prosecutors of the branch on the basis of a peculiar set of instructions - the CBI Crime Manual. The Manual claims itself to be a reference book prepared by senior police officers in the CBI, and is not a substitution of law. But in reality, CBI officials are regularly taken to task for not following the Manual and even prosecutors are being proceeded against on the ground of non-compliance with the Manual. Thus, the mischief which was supposed to have been rectified by Parliament has in fact been perpetuated by the CBI despite the clear mandate based on the wisdom and experience of the Law Commission of India, which is something unheard of in a society governed by the Rule of Law.

It would not be out of order to quote here the famous Vineet Narain Judgment, which directed the Central government and the CBI to establish an independent and impartial Prosecution Wing in the CBI in the following paragraphs:

“Steps shall be taken immediately for the constitution of an independent, able and impartial agency comprising persons of unimpeachable integrity to perform functions akin to those of the Director of Prosecution in UK. On the constitution of such a body, the task of supervising prosecution launched by the CBI/Enforcement Directorate shall be entrusted to it.

Till the Constitution of the aforesaid body, Special Counsel shall be appointed for the conduct of important trials on the recommendation of Attorney General or any other law officer designated by him.”

Needless to say, this direction is binding as law under Article 141 of the Constitution of India.

But things were turned upside down in the CBI, firstly, by one Circular through which the Directorate of Prosecution was reconstituted in the wake of Vineet Narain judgment, which stated that the Prosecution Wing will be “impartial but not necessarily independent,” and secondly, by amendment in the Delhi Special Police Establishment Act, 1946 (insertion of Section 4-BA) making the Director of Prosecution in the CBI work under the overall supervision and control of the Director of the CBI. This flies in the face of the judgment in Vineet Narain and other binding judgments of the Supreme Court, for which the Union government as well as the Administration Wing of the CBI could possibly be held in contempt.

The main victim of this sorry state of affairs is not the prosecutors in the CBI, but the common citizen of this country. To illustrate my point with an example, when the Vigilance Department in a state prosecutes a public servant for offences under the Prevention of Corruption Act, 1988, he will be prosecuted by a person who can independently apply his mind to the facts of the case and is bound to be impartial and independent from the police in appreciating evidence. When another public servant is prosecuted under the same Act, but this time by the CBI, his prosecution would be conducted by a prosecutor who would not be truly independent and impartial and would work according to the whims of the SP and higher officials in the CBI. This violates Article 14 as well as the right to fair trial of an accused person enshrined under Article 21 of the Constitution of India.

The pay scale of CBI prosecutors - Repelling the best talent?

Another important aspect of the functioning of prosecutors in the CBI is their pay scale. A higher pay scale has the potential to attract the best talent and ensure that the CBI prosecution has the edge amongst all investigating and prosecution agencies in the country when it comes to quality of work. Regretfully, the pay scale for prosecutors in the CBI is not in line with industry standards. An entry-level Assistant Public Prosecutor and Public Prosecutor in the NCT of Delhi (a level 8 and level 11 Post respectively in the Central Pay Commision) now has a higher pay than its equivalent posts in the CBI, which are stuck at level 7 and level 10 respectively in the Central Pay Commission.

Such disparity in pay scales only fuels discontent among the prosecutors and leads to a brain-drain, where prosecutors are always on the lookout for better career opportunities offering them higher pay and better conditions of service. It is common knowledge that many prosecutors in the CBI resign from their jobs and join other organizations and departments solely because of this reason.

Sunlight is the best disinfectant

Not many realize that the CBI is the nodal agency notified for INTERPOL in India, which is a network of police from various member-countries for mutual assistance. The CBI is often touted as the premier investigating agency in this country. But with all the stress upon investigation, it is quite easy to forget that the CBI is, by implication, a premier prosecuting agency as well. I like to imagine the CBI as a chariot - the two wheels of it being the investigation and prosecution wings. A malfunction or problem in any of the wheels will halt the chariot.

The aim of this article was to enforce the adage 'Sunlight is the best disinfectant' (attributed to the celebrated US Supreme Court Judge Louis Brandeis). But something bigger is at stake here - rights of persons who are prosecuted by the CBI, enshrined under Article 21, 14 and 19 of the Constitution of India. Will policy makers and the judiciary listen?

Sunil Verma is a Public Prosecutor in the CBI. Views are personal.